JOINT DISSENTING OPINION OF JUDGES LEMMENS AND PAVLI

1. We regret that we cannot agree with the majority’s finding that there has been no violation of the applicant’s Article 10 rights in this case. Our disagreement relates both to the general approach adopted by the majority in weighing the private employer’s rights vis-à-vis the public interest in the disclosure of the relevant material, and to the reasons provided by the national courts in concluding that the employer’s interests ought to prevail under the circumstances. In particular, we are of the opinion that the considerations relied upon by the national courts in their assessment of what is called the “fifth criterion” identified in Guja v. Moldova ([GC], no. 14277/04 , ECHR 2008), namely the criterion requiring a balancing of the public interest in obtaining the information and the harm caused by the disclosure to the employer (see Guja , cited above, §§ 76 and 90-91; see also paragraphs 25-34 of the present judgment), are at odds with basic notions of public-policy discourse in a democratic society. Regretfully, therefore, we are unable to agree with the majority’s acceptance of that reasoning (see paragraphs 94-110).

2. The outcome of the balancing exercise performed by the national courts was based on the supposedly limited contribution of the applicant’s disclosures to public debate, as compared in particular with the initial set of revelations, made by another employee of the company concerned. The key argument in this respect was that the documents disclosed by the applicant did not bring to light any “essential, new and previously unknown information” (see paragraph 28 of the present judgment). Based on that assessment, the national courts held that the harm suffered by the applicant’s employer outweighed the general interest in receiving the disclosed information (ibid.).

The nature of the applicant’s disclosures

3. We recall that the applicant’s disclosures consisted of sixteen documents, including fourteen tax returns by multinational corporations and two cover letters, some of which were used to prepare an episode of the investigative television programme “ Cash Investigation”, broadcast on 10 June 2013 (see paragraph 8 of the present judgment). According to the investigative journalist in charge of that programme, the applicants’ revelations served as the principal basis for that episode. [1] The journalist also noted that certain disclosures made during that episode would have been impossible without access to the information revealed by the applicant. [2] The documents handed over by the applicant, together with documents obtained as part of the initial disclosure by a different whistle-blower, were subsequently published on 5 and 6 November 2014 by the International Consortium of Investigative Journalists (ibid.). It is clear from the case file that the applicant put forward compelling arguments before the national courts (some of them mentioned in paragraph 39 of the judgment) as to why the tax returns disclosed – and in particular the annexes thereto – were important for verifying, substantiating and building upon the documents disclosed in the initial set of revelations. These arguments were also endorsed by the investigative journalist concerned, who was well placed to assess the importance of the applicant’s disclosure for the ongoing public debate on the matter. The two sets of disclosures appear therefore to have been closely connected.

4. It is not in dispute that the applicant’s disclosure was in the public interest (see paragraph 92 of the present judgment). The national courts recognised that the disclosed material facilitated a public debate in Luxembourg and, indeed, at the European level regarding the taxation of multinational companies, tax transparency, the practice of so-called “tax rulings” and fair taxation in general (see paragraph 21). For the national courts the decisive question was “ how much was it in the public interest”? As will be explained below, we do not think that this is the correct way to pose the question under Article 10 (see, in particular, paragraph 8 below).

The weight to be attached to the interests of a private employer in whistle-blower disputes

5. It is settled case-law that there is little scope under Article 10 § 2 of the Convention for restrictions on debate on questions of public interest (see Sürek v. Turkey (no. 1) [GC], no. 26682/95 , § 61, ECHR 1999-IV, and Guja , cited above, § 74). Exceptions to the general principles established in Article 10 § 1 must be construed strictly, and the need for any restrictions must be established convincingly (see Hertel v. Switzerland , 25 August 1998, § 46, Reports 1998 ‑ VI; Steel and Morris v. the United Kingdom , no. 68416/01, § 87, ECHR 2005 ‑ II; and Guja , cited above, § 69).

6. In determining the proportionality of an interference with the freedom of expression of an employee making a disclosure on public-interest grounds, the Court must – under the so-called “fifth Guja criterion” – weigh the damage, if any, suffered by his or her employer as a result of the disclosure and assess whether such damage outweighed the interest of the public in having the information revealed (see Guja , cited above, § 76). In contrast to the present case, the balancing exercise carried out in Guja, which involved disclosures made by a senior prosecutor, was between two public interests: on the one hand, the interest in informing the public about undue pressures and wrongdoing within a public prosecutor’s office and, on the other, the interest in maintaining public confidence in that body. In Heinisch v. Germany (no. 28274/08 , § 89, ECHR 2011 (extracts)), which involved a publicly-owned healthcare provider, the Court recognised that the balancing exercise can also involve the (private) interest in protecting the commercial success and viability of companies for the benefit of their shareholders and employees, but also for the wider economic good. Conversely, the Court highlighted the public interest in running public companies that meet proper service standards as an argument in favour of the disclosures.

7. The “fifth Guja criterion” must be interpreted and applied in line with the overarching principles referred to in paragraph 5 above. As the Court has noted specifically in connection with the application of that criterion, open discussion of topics of public concern is essential to democracy, and regard must be had to the great importance of not discouraging members of the public from voicing their opinions on such matters (see Guja , cited above, § 91).

8. In our view, it follows from these considerations that once it is established – as it has been in the present case – that the information disclosed by the employee was a matter of public interest, the disclosure in question must be presumed to be protected under Article 10 of the Convention. For this presumption to be rebutted under the “fifth Guja criterion”, the employer (and, in criminal proceedings, the prosecution) should be required to present compelling reasons, based on concrete and significant harm to the private interests concerned, for establishing that these interests clearly outweighed the value of disclosure. A less protective approach would result in considerable legal uncertainty and be likely to deter any future employees from making such disclosures, which would be at odds with the fundamental principles guiding the application of the Guja criteria.

9. Furthermore, the weighing of the competing interests under the “fifth Guja criterion” should not be made in isolation, but in the light of the global Article-10 analysis, encompassing all the relevant criteria. In other words, the Guja criteria are not to be viewed as mere boxes to be checked, but as principles guiding a comprehensive review by the national courts. Conversely, this does not mean that unmeritorious disclosures, made with little concern for the public interest and/or causing considerable harm to legitimate private interests, should prevail.

10. The proposed approach is also supported by recent international developments regarding the protection of whistle-blowers, which have recognised the need for strengthened protection in both the public and private spheres (see paragraphs 50-58 of the judgment). Notably, EU Directive 2019/1937 on the protection of persons who report breaches of Union law (see paragraph 51 of the judgment) does not make the protection of whistle-blowers conditional on any considerations related to the harm caused to the employer, as long as the general conditions for protection under Article 6 of the Directive are met.

11. In the light of the above factors, we consider that the Court should have looked more closely at the manner in which the national courts weighed up the competing interests at issue in the present case. In particular, the considerations stemming from the Guja and Heinisch line of case-law have been applied in the present case – the first whistle-blower case, to our knowledge, to involve a purely private employer – without due regard for the fundamental principles of Article 10. In particular, the national decisions were based on the isolated finding of a failure to meet the “fifth criterion”, without assessing the role of that factor in the global analysis and without identifying any compelling private interests against a disclosure deemed to be generally in the public interest.

The requirement of “essential, new and previously unknown information”

12. Finally and most importantly, we take issue with the national courts’ reliance, within their assessment of the “fifth Guja criterion”, on the purported lack of “essential, new and previously unknown information” in the applicant’s disclosures (see paragraph 2 above). In our view, such an approach does not find support in this Court’s case-law (see paragraph 13 below), rests on a misguided notion of how public debate works (see paragraph 14 below), is likely to produce significant chilling effects (see paragraph 15 below), and is questionable on the facts of the case (see paragraph 16 below).

13. The national courts’ treatment of the applicant’s follow-up disclosure does not sit well with the Court’s general (and one might add, commonsensical) view that the fact that a public debate on a certain matter is ongoing speaks in favour of further disclosures of information which develop that debate (see, for example, Dammann v. Switzerland , no. 77551/01 , § 54, 25 April 2006, and Colaço Mestre and SIC – Sociedade Independente de Comunicação, S.A. v. Portugal , nos. 11182/03 and 11319/03 , § 27, 26 April 2007).

14. Furthermore, the distinction made by the national courts between the first and second set of revelations seems to rest on the notion that once a public debate is opened by certain information being disclosed, the public interest in receiving information that confirms, complements or reinforces the initial information is significantly reduced. Even if we were to accept the view that the facts disclosed by the current applicant were qualitatively less “novel” – general tax avoidance by corporations rather than government malfeasance as such – we find it hard to come to terms with a view of public debate that is instantaneous or frozen in time. The public’s attitudes towards issues of public interest can change constantly; in some cases, decades of argument and counter-argument may be needed before any meaningful change in public or private conduct is achieved. In addition, with regard to the subject-matter of the revelations made by the applicant in the present case, the intricacies of corporate tax policies are hardly the most accessible topic for the general public. The national courts appear to have underestimated the great illustrative strength that lies in disclosures of the kind made by the applicant: yes, the general contours of a (perceived) problem may be widely known - but there is still great value in sketching out its precise dimensions and manifestations. One may be well aware, for example, of the problem of police violence; but the impact of a specific episode of excessive force captured on video can nevertheless be transformational.

15. The approach taken by the national courts, and endorsed by the majority, is capable of creating significant chilling effects for future whistle-blower disclosures in the private sector. This is because an individual who is considering disclosing information that he or she believes to be in the public interest may face great uncertainty in assessing whether that information will be deemed to meet the much higher standard of “essential, new and previously unknown” data. In this respect, it is generally recognised that “the scope of protected disclosures should be easily understandable by potential whistle-blowers” [3] and that the protection of whistle-blowers should not be “subject to subjective and unpredictable conditions ... without any clear and precise indication of what is expected of the potential whistle-blower”. [4] The approach taken by the national courts is at odds with these requirements.

16. Finally, the harm caused to the employer’s interests in the present case was negligible in the long term, as expressly recognised by the majority (see paragraph 102 of the judgment). As such, the applicant’s disclosures must have been considered of such low Article 10 value that they had to give way even to less than significant harm on the other side of the scales. While we appreciate the need for some deterrence against potentially unjustified and repeated disclosures about the Luxembourg financial market, we find that the factual assessment made by the national courts in this case is far from convincing (see paragraph 3 above).

17. In conclusion, the balance struck by the majority between the public interest in whistle-blower disclosures and the private-sector interests in secrecy is in tension with the Guja line of this Court’s case-law, as well as with emerging European standards in this area. In our humble view, it creates obstacles to effective protection for whistleblowing in the private sector.

[1] See https://lequotidien.lu/politique-societe/proces-luxleaks-perrin-les-voleurs-nont-pas-ete-condamnes/ .

[2] Ibid.

[3] Report of the U.N. Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, 8 September 2015, A/70/361, at paragraph 33.

[4] Resolution 2300 (2019) of the Parliamentary Assembly of the Council of Europe, at paragraph 12.7.